LPR Mom sponsored son in F2A category

My Mom sponsored me in the F2A category in 2002 and the petition was approved by USCIS in June 2005. Since our priority date(Novemner 2002) was not current in June 2005, the petition sat with NVC until last month when my priority date became current and they sent my mom the affidavit of support forms etc.

Anyway, my question was that I got married in July 2006, am I still eligble for a Green Card and proceed with my application or is my application now considered void.

I personally reckon that the old PD cannot be used. However I am very much interested to know if someone in a similar situation was ever able to retain the original PD with a fresh I-130, as long as the sponsor was the same.

I personally reckon that the old PD cannot be used. However I am very much interested to know if someone in a similar situation was ever able to retain the original PD with a fresh I-130, as long as the sponsor was the same.

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I've never heard anything definitive from INS or USCIS that says that the PD is lost. The whole principle of Priority Date portability rests on the notion that if an applicant has a prior I-130 or I-140 approved and said petition was not revoked based on fraud or misrepresentation, then the alien can claim the earlier priority date.

I don't see ineligibility for the benefit as canceling this, so long as the petition was approved. To give an example, let's say an alien is petitioned by a US employer and the I-140 is approved. Prior to the alien becoming a permanent resident, the employer decides to no longer sponsor the alien and informs USCIS of this fact. The alien is now ineligible for permanent residency based on that I-140, but can still use the PD at a later date.

I don't consider it a stretch to make the same argument on the FB side.

I agree in principle with you, but has it successfully happened for an FB based GC applicant?

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I've never heard of a single case where the claim was made. We're in a situation where there doesn't appear to be any known precedent one way or another. But considering the significant advantage to be had by claiming the earlier PD and the reasonableness (IMO) of such an argument, to me it would be logical to try and make the claim.

what would be the purpose of USCIS cancelling such a petition if the beneficiary marries, if the beneficiary could retain the original PD? that would defeat the purpose of starting over. Just to collect money for a new I-130 but letting you keep the old PD?

what would be the purpose of USCIS cancelling such a petition if the beneficiary marries, if the beneficiary could retain the original PD?

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Because priority date retention and petition eligibility are two orthogonal concepts. You can keep a priority date from a petition you are no longer eligible for.

that would defeat the purpose of starting over.

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You don't start over just to punish someone; you start over because the I-130 is no longer valid since the alien no longer qualifies. If, however, the alien qualifies under a different FB category then the PD should be portable.

Just to collect money for a new I-130 but letting you keep the old PD?

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It's not just to collect money; if the alien has a different sponsor then a new I-130 must be filed.

but if the beneficiary divorces, he/she will once again be an unmarried son/daughter of an LPR - however, this won't work "backwards", right?

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I don't know if the FB2A I-130 remains valid if the beneficiary marries and then divorces, or for certain if the PD is retained. I think we're getting into the area of "how many angels can dance on the head of a pin?"

All I'm trying to do is suggest that there may be a way to marry and retain the old PD, thereby allowing him to file the I-130/I-485 immediately after marriage. I do not know if this will work or not - but I've not seen anything that would prevent it. It's certainly worth the $300 or so it will cost to get a few consultations.

9 FAM 42.53 N2.4-2 When a Child Reaches Majority
(CT:VISA-835; 08-17-2006)
a. When the child beneficiary of an approved immediate relative petition
turns 21 years of age, the petition automatically converts to first
preference. The priority date is the filing date of the petition which at the
time of filing accorded immediate relative status.
b. A child accorded 2A status derivatively loses entitlement to such status
upon reaching the age of 21. Under DHS regulations, however, the
petitioner must file a new petition on behalf of the alien to accord second
(2B) preference. The new petition shall be accorded the priority date of
the initial petition.
c. A child in the 2A group who reaches 21 years of age is no longer entitled
to 2A status. If such child is the beneficiary of an approved petition, the
petition automatically provides the basis for 2B status as of the
beneficiary’s 21st birthday. No further action by DHS, the petitioner or
the beneficiary is necessary. (The situation is similar to that of an IR-2
applicant who turns 21 prior to visa issuance; that petition automatically
converts to provide first preference status.)

9 FAM 42.53 N2.5 Family Petition Valid for
Purposes of That Petition Only
(CT:VISA-835; 08-17-2006)
A priority date established by an approved petition for any of the familysponsored
preference classes is valid only for the purpose of that petition. If
the petition is revoked under INA 203(g) or 8 CFR 205, or if a new petition is
filed by a different petitioner for the same beneficiary, the priority date of
the initial petition is not transferable to the new petition. If, however, the
petition has not been revoked under INA 203(g) or 8 CFR 205, and a new
petition is filed by the same petitioner for the same beneficiary in the same
classification, the DHS deems the approval of the new petition to be a
reaffirmation of the initial petition and reinstatement of the priority date of
that original petition.

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So, so called portability of petitions works only for two cases:
1. I-130 filed by the same petitioner to the same beneficiary in the same immigrant classification. The petition seems reconfirmation, and priority date is retained.
2. I-130 filed in F2A category. Later I-130 is filed in F2B category to the same beneficiary by the same petitioner. Priority date is retained.

That is it.

No other case of I-130 retains priority date. No case of I-140 retains priority date.

However, because of CSPA case 2 does not need to be used most of the time. Case 2 has to be used only when CSPA could not be applied. Examples when it could not be applied are:
- Limitation of 1 year (between priority date being current and date of application for a visa) has been exceeded.

I do not see any other examples, though.

The part of my message about I-140 is not right - see further comments down.

Just because priority date portability for EB cases isn't mentioned in that specific part of the FAM, doesn't mean it doesn't exist.

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The document name is 42.53 Priority Date of Individual Applicants. This is the complete set of rules regarding priority dates. No other rules exist - clearly this document is the only instruction for consulates on the subject, they need to have things simple, and if 9 FAM document on the subject exists, that is the complete one. However, the case of I-140 was mentioned (which I did not see first).

9 FAM 42.53 N3.6 Subsequent Petition in
Employment-based Classifications
(TL:VISA-173; 11-10-1997)
a. Unless revoked pursuant to 8 CFR 205.2 for fraud or misrepresentation, a
priority date accorded by approval of an employment-based first, second
or third preference petition is retained by the beneficiary for any other
first, second or third preference petition approved subsequently for the
same beneficiary. In all cases, the beneficiary of multiple petitions is
entitled to the earliest of the filing dates of the various petitions.
b. A priority date established in the employment-based first, second or third
preference category, however, is not transferable to employment-based
fourth or fifth preference petitions or to a family-sponsored petition.

9 FAM 42.53 N3.7 Substituting Alien Beneficiary
(TL:VISA-284; 05-17-2001)
Once a labor certification has been approved, an employer may substitute
another employee. Although the certification remains valid, the substituted
employee does not retain the original priority date, but rather is assigned a
priority date as of the date the employer requested the substitution.